District Attorney Jan Scully announced Monday afternoon that her office would not file state charges against protesters arrested for refusing to disperse from an unlawful assembly after being ordered to do so by law enforcement.

Scully’s position – that no unlawful assembly occurred – has her office ostensibly siding with the protesters and in direct conflict with the Sacramento Police Department.

“They are still in violation and we will continue to make the arrests,” said Laura Peck, a police spokeswoman, in response to questions about continued arrests under the state law.

Those arrested will still face prosecution on charges that they violated a city ordinance making loitering after curfew illegal in Cesar E. Chavez Plaza. The city attorney’s office, not the district attorney, handles violations of city ordinances.

Mirroring the Occupy Wall Street movement, which has taken up full-time residence in a New York City park, Sacramento protesters representing an array of issues have sought to remain in Chavez Plaza overnight.

All but one of the 75 protesters arrested have been charged with violating both the state law and city code. One person who uses a motorized wheelchair was cited for violating the city code and released.

Eighteen are to be arraigned at 8:30 a.m. Wednesday in Sacramento Superior Court.

Peck said it is not uncommon for the district attorney to decline to file charges after police arrests. The District Attorney’s Office notified the city of its position early last week, said Shelly Orio, a spokeswoman for the district attorney. Since that time, 17 arrests have been made under the state and local laws.

“Just because they are not being prosecuted doesn’t mean they are not in violation,” Peck said.

Supervising Deputy City Attorney Gustavo Martinez said the city will prosecute the violations of the city ordinance. Each case will be evaluated individually, but the city will not seek the maximum misdemeanor punishment of six months in jail or a $1,000 fine, he said.

He said the city’s job was to evaluate whether a violation occurred, not to assess the message protesters are trying to deliver.

“We really don’t look at the content of their speech, we just look at the crime,” Martinez said.